Printed on: December 30, 2012
Taking the thoughtful approach
Sean J. Coletti
Our discussions on gun violence should begin by recognizing what the U.S. Supreme court said on this subject four years ago, writes Sean J. Coletti.
In 1803, only a few years after the Constitution was ratified, the U.S. Supreme Court held that "[i]t is emphatically the province and duty of the judicial department to say what the law is." The case of Marbury v. Madison set in course well over 200 years in which our courts have interpreted our laws, with the U.S. Supreme Court being the ultimate authority.
It has also taken over 200 years for the Supreme Court to conclusively interpret the Second Amendment's "right of the people to keep and bear Arms." Lauded by the right and vilified by the left, the 2008 District of Columbia v. Heller case held that the Second Amendment protects an individual's right to possess a firearm.
Forgotten in the Heller decision is language about gun regulations that are "presumptively lawful." Of note, author Antonin Scalia wrote: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."
What can we learn from this most recent authority on the Second Amendment, in light of the tragic school shootings at Sandy Hook Elementary in Connecticut?
First, our nation must take a critical look at gun violence. We cannot be content with having one of the highest rates of gun-related deaths in the world. We need to address this issue, from all sides, with all parties at the table.
Second, we must recognize that Heller is the law of the land. According to Heller, the Constitution protects the right of individuals to possess firearms which are "in common use at the time" and are not "dangerous and unusual." The effect of the lawful and proper use of firearms on stemming gun violence should be made part of our national discussion.
Third, we must recognize that the right secured by the Second Amendment is not unlimited. There are regulations which do not violate constitutional rights, including limitations on the types of weapons that are available. Courts will likely interpret gun laws consistent with the Heller decision. Therefore, we can focus our efforts on presumptively constitutional measures mentioned in Heller and other appropriate societal and cultural solutions to gun violence.
By recognizing our constitutional rights, accepting that we have a gun violence problem, bringing all to the table to address it, and making changes already recognized as lawful, we can make thoughtful, unified improvements to our gun laws and to national safety.
Coletti is an attorney at Hopkins Roden Crockett Hansen & Hoopes PLLC and also serves on the Ammon City Council.